The High Court has ordered Joseph Traynor and Seamus Mallon to pay Brian Johnston the costs of a six-day third-party dispute in proceedings brought by ACC Bank plc. The order includes two days already covered by an earlier costs order, replacing that earlier order with an award based on all six days.
In a judgment delivered on 21 December 2011, Mr Justice Clarke addressed costs between Johnston, a solicitor, and Mallon. The court had previously found Mallon to be a concurrent wrongdoer with Johnston and apportioned responsibility for the damages at 70% to Mallon and 30% to Johnston. Mallon was required to indemnify Johnston for €1.4 million of the €2 million damages awarded to ACC.
The third-party case took five days to determine liability in principle and a further day to decide the contribution. Mallon argued that Johnston should recover only 70% of the costs, reflecting the apportionment. The judge rejected that argument: Johnston had to bring the proceedings to obtain any contribution, and the unsuccessful claim for a full indemnity had not materially lengthened or increased the cost of the case. Two days’ costs had already been awarded against Mallon after he amended his pleadings. The new order covered the four remaining days as well, substituting a six-day costs award for the earlier two-day award.
Johnston also sought an indemnity from Mallon for costs he incurred defending ACC’s claim, including costs payable to ACC. The judge refused. Johnston had denied negligence and advanced evidence and legal arguments that the court rejected; the judge held that the resulting defence costs could not be shifted to Mallon. Johnston had already received a reduction in the costs payable to ACC, including costs relating to the damages hearing.
Mallon sought his costs of participating in the three-day quantum hearing, arguing that his submissions and evidence helped reduce the damages claimed. The judge refused that claim because Mallon had not made an advance concession identifying a sum he accepted should be awarded. No order was sought against Mallon for those quantum-hearing costs.
The court’s order was limited to the third-party costs award and the rejection of the two separate costs claims. The judgment did not revisit the earlier findings on negligence, damages or apportionment.